After President Richard Nixon left office in 1974, a bipartisan congressional investigation discovered many of his constitutional excesses. Foremost among them was the use of FBI and CIA agents to spy on Americans in violation of federal law and the Fourth Amendment to the Constitution. Nixon argued that the government needed to monitor “subversives” in order to shore up the “national security.” As for breaking the law and violating the Constitution, Nixon defended himself by proclaiming in a now infamous post-presidency interview with David Frost that: “When the president does it, that means that it is not illegal.”
That Henry VIII-like statement was too much for Congress to bear in the Carter years, so it enacted the Foreign Intelligence Surveillance Act (FISA), which prohibited domestic spying unless the feds first obtained search warrants for surveillance from a federal judge sitting on a newly created FISA court. The FISA court, populated by sitting federal judges assigned there by the chief justice, was charged with issuing secret general warrants based upon secret evidence or no evidence and all in violation of the Constitution, which requires the presentation of evidence that constitutes probable cause of crime as the sole linchpin for the issuance of a search warrant.
When Edward Snowden, the former contractor to the National Security Administration (NSA), revealed that since at least 2004 the FISA court has been issuing general warrants to NSA agents and to telecoms and Internet service providers directing that the NSA capture in bulk the content of telephone calls and emails and texts sent into, out of or within the United States, we learned a bit more about the operation of the FISA court.
What we learned makes it self-evident that the FISA Court itself is unconstitutional.
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